Ontario Privacy in Public Spaces Decision: The Need to Recognize Privacy as a Dignity Baseline, Not an Injury-Based Claim

An Ottawa woman has successfully argued for a privacy right in public spaces.  After video of her jogging along the parkway was included in a commercial, she sued for breach of privacy and appropriation of personality. 

"The filming of Mme. Vanderveen's likeness was a deliberate and significant invasion of her privacy given its use in a commercial video," the judge added. 

While pleased with the outcome, I’m a little uncomfortable with the presentation (and not sure whether that’s about the claimant or the media).  It appears that the privacy arguments here were grounded in “dignity”, and particularly in self-image.  That is, at the time the video was taken, the claimant was (or felt herself to be) overweight and had only recently taken up jogging after the birth of her children.  She testified that she thought the video made her look overweight and it caused her anxiety and discomfort. As her lawyer stated, “[s]he’s an incredibly fit person. And here’s this video — she looks fine in it — except that when she sees it, she doesn’t see herself. That’s the dignity aspect of privacy that’s protected in the law.”

In response, the company appears also to have focussed on self-esteem and injury.  “They made the argument that if they don’t use someone’s image in a way that is embarrassing or if they don’t portray someone in an unflattering light — here it is just her jogging and it’s not inherently objectionable — that they should be allowed to use the footage.  In contrast, the claimant argued that how someone sees themself is more important than how a third person sees them.”

Why does this bother me?  For the same reason that the damage threshold bothers me….because invasion of privacy is an injury in and of itself. 

By focussing on her self-image and dignity, we’re left to wonder whether, if another individual had been filmed without their consent, had tried to cover their face when they saw the camera (as did the claimant here) and yet was included in the video, would a court come to the same result?  Or is there some flavour of “intention infliction of emotional suffering” creeping into this decision?  When the judge states that “I find that a reasonable person, this legally fictitious person who plays an important role in legal determinations, would regard the privacy invasion as highly offensive and the plaintiff testified as to the distress, humiliation or anguish that it caused her” what “injuries” are implicitly being normalized?  The source of the injury seems to be that of being (or believing oneself to look) overweight – is (and should) size be conflated with humiliation?  The judge concludes that while “Mme Vanderveen is concerned about the persona that she presents and about her personal privacy I find that she is not unusually concerned or unduly sensitive about this” but I find myself wondering about the social context.  Would a man claiming the same distress/humiliation/anguish in this situation have been taken as seriously?   

The judge found that "[t]he photographer was not just filming a moving river, he or she was waiting for a runner to jog along the adjacent jogging trail to advertise the possibility of the particular activity in Westboro."  Because of the desire to capture someone running, part of the damages included an estimate of what it would have cost to hire an actor to run along the river.  This is where the privacy breach takes place – the deliberate capture of an individual’s image, and its use without their knowledge or consent for commercial purposes.

The issue isn’t how she felt about herself, nor whether she like(d) the way she looks in the video – it is the act of making and using the video of her in the first place.  When we focus on the injury to her dignity, we risk misdirecting the focus, making it about the individual rather than about the act of privacy invasion. 

Individuals shouldn’t have to display their wounds in order to be considered worthy of the protection of law.  Rather, law should be penalizing those who do not take care to protect and respect privacy.  That’s how we respect dignity – by recognizing it as an inherent right possessed by persons, with a concurrent right not to have that privacy invaded. 

Where and When is it Reasonable to Expect Your Messages to be Private (and what protection does it offer anyway)?

When you text message someone, do you have a reasonable expectation of privacy in that message?

R. v. Pelucco was a 2015 BC Court of Appeal decision involving a warrantless search of text messages found in a cell phone.  The question was whether the sender had a reasonable expectation of privacy in those messages.   The majority concluded that when legal and social norms were applied, a sender would ordinarily have a reasonable expectation that the messages would remain private. Justice Groberman writing for the majority, concluded that the lack of control once the message had been sent was a relevant factor in assessing objective reasonableness, but not determinative.

I’ve written about this decision previously here.

What about when you message someone privately using an online platform? 

In R v Craig, released 11 April 2016, police obtained private online messages between Mr. Craig, E.V.  and several of E.V’s friends from Nexopia, a Canada-based social network site targeted at teens. 

Mr. Craig (22) and E.V.(13) originally met via (private) messaging each other on Nexopia.  Messaging continued, as did offline meetings that ultimately resulted in him (illegally) providing her with alcohol and having sexual relations (to which she could not legally consent, being 13) with her.  When two girls from E.V.’s school overheard a conversation with E.V. regarding her sexual encounter with Mr. Craig, they reported it to a school counsellor. The counsellor subsequently called the police, and the police investigation commenced. He was charged and convicted of sexual touching of a person under the age of 16,  sexual assault, and internet luring (communicating with a person under the age of 16 years for the purpose of facilitating the commission of an offence under s. 151 with that person). 

When the police interviewed E.V., she provided Mr. Craig’s name and logged on to her Nexopia account to print out messages between them, including a photo of Mr. Craig.    A friend of E.V. also provided pages from her own account containing messages with Mr. Craig in which he admitted to having sex with E.V. 

Police obtained a search warrant for messages on the Nexopia servers under the usernames of E.V., several of her friends, and Mr. Craig.  A number of the documents seized from Nexopia were not disclosed to the defence pursuant to a Criminal Code presumptively forbidding production of complainant or witness records when the charge is sexual assault or sexual interference.  A “record” is one that contains “personal information for which there is a reasonable expectation of privacy.” 

Craig argued that there was no reasonable expectation of privacy in those messages -- that the messages were sent, received and stored on Nexopia’s servers, and thus had never been private.  Accordingly, the defence should be able to access them. 

The threshold for reasonable expectation was articulated as the expectations of the sender at the time the message was sent.  In this case, the messages were “personal communications between friends and confidantes, and were not intended for wider circulation beyond the small circle of friends.”  Accordingly, there was a reasonable expectation of privacy in the messages and they were protected from having to be disclosed to Mr. Craig.

Mr. Craig then sought to exert his own reasonable expectation of privacy over (some of) the Nexopia messages.  The trial judge disagreed, finding that Mr. Craig had no reasonable expectation of privacy in the messages, even those he had authored and sent himself because he had no control over them after sending. 

On appeal, the “control” test was rejected:

While recognizing that electronic surveillance is a particularly serious invasion of privacy, the reasoning is of assistance in this case. Millions, if not billions, of emails and “messages” are sent and received each day all over the world. Email has become the primary method of communication. When an email is sent, one knows it can be forwarded with ease, printed and circulated, or given to the authorities by the recipient. But it does not follow, in my view, that the sender is deprived of all reasonable expectation of privacy. I will discuss this further below. To find that is the case would permit the authorities to seize emails, without prior judicial authorization, from recipients to investigate crime or simply satisfy their curiosity. In my view, the analogy between seizing emails and surreptitious recordings is valid to this extent. [para 63]

Instead, the Court of Appeal found that Mr. Craig DID have an objectively reasonable expectation of privacy in the messages seized by the police, on the basis of both:

• An emerging Canadian norm of recognizing an expectation of privacy in information given to third parties;

• The nature of the information itself, since it exposed intimate details of his lifestyle, personal choices, and identifying information;

 (The appeal continued on to find that not only did Mr. Craig have an expectation of privacy in the messages, but that his s. 8 Charter rights against unreasonable search and seizure had been violated.   HOWEVER, the violation was not egregious or intention, it had no or negligible impact on Mr. Craig’s interests, and accordingly admission of the messages into evidence would not bring the administration of justice into disrepute.  In fact, they noted, the case dealt with serious charges involving offences against a young teenager, and this too weighed in favour of admitting the evidence.  The appeal was dismissed, with the Court of Appeal finding that there had been no substantial wrong or miscarriage of justice at trial). 

So there you have it:

Yes, you may well have a reasonable expectation of privacy in messages you’ve sent to others, either via text or online platforms. 

Remember though, that doesn’t mean they stay private – it only means that they (and by extension you and your informational dignity and autonomy) must be treated in accordance with Charter protections

At what point it is no longer reasonable to expect any privacy at all?

Legal tests around privacy speak of a “reasonable expectation” of privacy.  As we become more and more aware of the multiple forms that tracking takes and the multiplicity of them with which we engage in a given day, how do we retain a reasonable expectation of privacy?  On top of that, government surveillance and private sector data mining are increasing and intersecting, and this too raises the question of the reasonableness of any expectation of privacy.   Is there is some kind of knowledge saturation point after which holding any expectation of privacy is presumptively unreasonable?  

The Case:  R. v. Pelucco, 2015 BCCA 370 (CanLII), http://canlii.ca/t/gkrd1

The accused was arranging, through text messages, to sell one kilogram of cocaine to Mr. Guray, when the police arrested Mr. Guray and seized his cellphone. Posing as Mr. Guray, they used his cellphone to arrange via text message to meet the accused and then arrested him. Police found drugs in his vehicle, and obtained a search warrant to search his residence, where more drugs were found. He was charged with three drug offences. At trial, he successfully applied to have all evidence excluded, contending that Mr. Guray had been unlawfully arrested, and that the search of the text messages on Mr. Guray’s cellphone violated his own right to be secure against unreasonable search and seizure. The Crown appealed, arguing that because the accused had no control over Mr. Guray’s cellphone, he had no reasonable expectation of privacy in the text messages from him that were recorded on it.

Justice Goepel, in his dissenting opinion in R v. Pelucco takes on Mr. Pelucco’s expectation of privacy in text messages that he had sent, as well as the larger question of whether any expectation of privacy could be reasonable in any circumstances.  Shutting down the suggestion that increased public knowledge and experience should somehow negate the reasonable expectation of privacy, he states that “the expectation of privacy is not meant to be a factual description of whether Canadians expect to be free from interference from the state, such that the state could reduce subjective expectations of privacy solely through adopting sufficiently invasive techniques.”  Building on this, and citing Tessling and Patrick, he puts forward

…the self-evident principle that the government cannot create an intrusive spying regime, diminishing Canadians’ expectation of privacy as a result, and claim that its conduct does not offend the constitution because Canadians, due to the serious invasion of privacy, no longer expect their affairs to remain private from government agents.

Admittedly these points are made in dissent, but this analysis is not key to his dissent, nor does it stand in opposition to the majority decision.  Although the dissent and majority do ultimately differ in their interpretations of the reasonableness of Mr. Pelucco’s expectation of privacy, that difference is not grounded in a limiting of reasonableness due to common expectations. 

Both majority and dissent, then agree that Mr. Pelucco himself had a (subjective) expectation of privacy, although they differ when it comes to the question of whether his individual belief was in fact objectively reasonable – the majority working from the assumption that a sender will ordinarily have a reasonable expectation that a text message will remain private in the hands of its recipient, while the dissent concluded instead that once the text message was received by Mr. Guray, Mr. Pelucco lost the ability to control what was done with or to it and therefore couldn’t reasonably have had an expectation of privacy. 

In the end, the case is resolved as follows à (1) it is objectively reasonable that a person would expect that a text message that they sent will remain private in the hands of its recipient; (2) in the actual facts of this situation there is nothing unusual or remarkable about the content or circumstances of the text conversation that might contradict or contraindicate this expectation of privacy;  and thus (3) the expectation remains.  

I am pleased that the criminal aspect of this has not swayed the analysis – that the Wong recognition that whether or not persons have a reasonable expectation of privacy does not depend on whether those persons were engaged in illegal activities continues to hold.   Pleased too at this recent statement and the recognition of another principle of interpretation –that State surveillance and intrusion cannot cloak itself in constitutionality merely by being so prevalent that it is held to diminish or erase any/every individual’s reasonable expectation of privacy.